San Diego DUI criminal defense lawyers understand Standardized Field Sobriety Testing, Drugs and Symptoms, and so can you.

BLOODSHOT/WATERY EYES, PUPILS, EYES, AND TONGUE.

Bloodshot/Watery Eyes: California DMV Driver Safety Manual Page 12.55:

“Bloodshot/Watery eyes can be caused by non-alcoholic causes”.
“Bloodshot/Watery eyes can be caused due to crying, contact lenses, allergies, or other eye irritations.”

Bloodshot/Watery eyes have nothing to do with marijuana influence; The DRE Manual (2010) Chapter XXI, gives the following explanation of what marijuana does to the eyes. Page 6, Marijuana is helpful to Glaucoma patients because it lowers the intraocular pressure by dilating in size the blood vessels of the eyes. The more size the less pressure. This causes a reddening of the conjunctiva(e) which is the clear membrane of the sclera (white portion of the eye), and lines the inside of the eyes lid and is made up of lymphoid tissue.

Note: This reddening by marijuana most closely resembles ‘Pink Eye’ and not the blood shot associated with alcohol and nowhere in any manual does it mention watery or glassy. In fact on the newer DRE form in the location for bloodshot, watery etc., it now contains the words “reddened conjunctiva”. It seems the DRE folks acknowledge that causes of bloodshot/watery eyes are too broad of a category for marijuana.

Dilated Pupils and Rebound Dilation: The DRE Instructors Manual (2010) Chapter XXI Page 13; For marijuana, the more THC content pupils usually tend to dilate and for less THC content they tend to be normal.

Page 13, “… DREs report a phenomenon termed “rebound dilation”; however, this phenomenon has not been scientifically investigated in a controlled research study.

Green Tongue: DRE Instructors Manual (2010, Chapter XXI page 8: “…there are no studies that confirm marijuana causes a green coating on the tongue.”

Overview of Signs and symptoms – marijuana, DRE Instructors Manual (2010), Chapter XXII pages 23 and 24 describes the DRE signs and symptoms for marijuana are: Dilated pupils, odor of marijuana, reddening of the conjunctiva, debris in mouth, body/eyelid tremors, relaxed, paranoid, increased appetite, disorientated and impaired perception of time and space.

Note: Nothing in the DRE Student or DRE Manual or charts indicates bloodshot watery, droopy eyes, green coating on the tongue, or rebound dilation and dilation seems to be dependent on the amount of THC and individual tolerance. The manual says, in general, even though DRE’s think they see some or all of these things, there are no scientific controlled studies to prove their existence

ODOR OF ALCOHOL: (People vs. Roybal, 655 P.2nd 410 (colo 1982) the odor of alcohol is created by drinking any amount of alcohol, not just an amount that would cause impairment or a person to have a .08% BAC; Odor of alcohol alone is not sufficient probable cause to request a chemical test. An additional 1998 study which, referring to the odor of alcohol, says ”it failed to rise above the level of a guess” (Burns, Moskowitz and Ferguson, Police Officers’ Detection of Breath Odors from Alcohol Ingestion, Accident and Analysis and Prevention 31 (1999) 175-180)

UNSTEADY GAIT/SLURRED SPEECH: DMV Manual: Possibly caused by non-alcohol related causes.

EYES, SPEECH AND GAIT: Howard Rathbun vs. Steven Gourley, Cal. App. 2nd 273, July 13, 2001. The court held that observations of the “so-called objective symptoms” bloodshot, slurred speech, unsteady gait.etc., only gives the officer reason to continue the DUI investigation, not cause to arrest. Also, poor SFST’s are opinions not statements of fact.

Note: Slurred speech means nothing unless you have a base line, i.e., talk to them after 8 hours when nothing could be in their system so that you can compare it.)(D’Amico)

TESTING OF MOTOR SKILLS: Hurst vs. Finley (1994) 857 F. Supp. 1517, 1521-1522. Court found that without testing driver’s motor skills in some way to determine if they were impaired by the effects of alcohol, there was not enough information to conclude DUI alcohol.

LACK OF CONVERGENCE: Dr. Marcelline Burns, Southern California Research Institute, deposition, 1998 and 77, 81 and 83 studies: Of the population 50% have Max. Deviation, 30% Lack of Convergence (LOC), and 4% Angle 40 degrees. Jack Richman, OD, Karl Yolton, PhD., OD Dr. Burns, IACP Technical Advisory Panel 1-1-2002, say that 35% of population have LOC.

PAS BREATH TESTING: During a routine check of the maintenance logs for Alco7410 Serial number ARR0276 from the DOJ LAB in Riverside, Lab Tech Brian Reinarz made the following notations about the calibration: On 9-9-05, he tested the above machine with a .100% solution value and came up with a .118% and a .124% value which was over the limit. On 9-12-05 he made the following notation on this form: “The 9-9-05 accuracy tests were high (.118 and .124) due to the inadvertent covering of the exhaust port by the operator. Test re-accomplished immediately, ok BR”. So it would appear that covering the exhaust port “inadvertently” will cause a 1 to 2 point higher BAC.

SFST’s

Jack Shuster and Marcelline Burns, DOT-HS-808-839-6 (August, 1998) “Validation of the SFST’s Battery”, “FST’s do not measure impairment related to driving.” Marcelline Burns: “The San Diego Studies were insufficiently documented for scientific purposes.” Also, “…It is unlikely that complex human performance, such as that required to safely operate an automobile, can be measured at roadside. The constraints imposed by roadside testing conditions were recognized by the developers of NHTSA SFST’s battery. As a consequence, they pursued the development of tests that would provide statistically valid and reliable indications of a driver’s BAC, rather than indications of driving impairment. The link between BAC and driving impairment is a separate issue, involving entirely different research methods. “

Lastly, “…SFST’s results help officers to make accurate DWI arrests decisions even though SFST’s do not directly measure driving impairment”

Dr. Burns, during a deposition on April 17, 1998, summarized her research into the following statements: 1) SFST’s do not measure driving impairment, 2) SFST’s do not show a specific BAC, and 3) SFST’s must be administrated correctly and scored according to the NHTSA standards to obtain valid results. In that deposition Dr. Burns says (page 30 line 4-7), on many occasions, variances from the prescribed manner of administration, observing and evaluation…deprive the tests of reliability and accuracy. “No other studies have been done”. “These tests are not tests of driving skills”. This position by Dr. Burns that the tests be “standardized” is echoed in virtually every police DUI manual.

State vs. Ellison (2005) WL487547 (Ga. App.) Absent a sworn SFST’s evaluation, an officer does not have legal cause to arrest a person for DUI even if the person 1) has strong odor of alcohol, 2) admits drinking, 3) has red/watery/bloodshot eyes, 4) the officer believes based on training and experience, that the person was under the influence, and 5) was arrested for DUI before and 6) does not think he/she can do the FST’s, therefore, refuses to take the test.

People vs. Leahy (1994) 8 Cal. App. 4th 587 & 598. Long standing use by law enforcement, does not alone seem less significant a factor than repeated use, study and confirmation by scientists and trained technicians. Also, to hold that long standing use by law enforcement, outside the laboratory, or courtroom seems unjustified, (Leahy @ 598).

People vs. Torres 173 Cal. App. 4th 977. Driver stopped for going over the limit line at stop sign, no SFST’s. Urine 50,000 ng/mL of meth and urine 16,000 ng/mL amphetamine. Nervous, jittery, remorseful, indifference, paranoia, sweating, muscle rigidity, sleepy, eyes wide open and chemical odor. 1 hour 40 minutes later, pulse elevated, somewhat dilated slow reaction to light. No evidence of bad driving and no evidence that meth impaired ability to drive safely.

State vs. Homan (April 26, 2000) 89 Ohio St. 3rd 421, 732 N.E. 2nd 952. Any variation of the NHTSA-3 make results completely unreliable as it relates to PC. “Variations create new tests that have not been studied…Strict compliance with testing procedures”

U.S. vs. Horn 185 F. Supp. 2nd 530 (D.MD. 2002). Limits FST’s use and stands for these propositions: 1) Results of SFST’s may be considered for PC, only if there is a foundation the SFST’s were properly conducted. 2) The SFST’s cannot be correlated with a specific BAC,

3) Judicial notice that there are many others (38) causes of HGN outside of alcohol.

Shultz vs. State, 664 A.2nd 60, 77 (Md. App. 1995), 4) “… Value added descriptive language regarding SFST’s such as ‘failed the test’, ‘exhibited a certain number of clues’ or any other bolstering attempts by officers are not allowed, and 6) SFST’s should not be referred to as scientific, technical or specialized. Results of SFST’s individually or collectively are not admissible – for the purpose of proving a specific BAC of a driver charged with DUI. Therefore performances of the SFST’s are not relevant to charges of 23152(b) SFST’s admitted as circumstantial evidence not direct evidence.

The NHTSA requirements for a person to be trained in the SFST’s are 16 hours, 35 practical tests in 6 months with BAC readings verifying their findings. This might be helpful in cross examination if an officer states he is an expert in SFST’s.

Dr. Marcelline Burns of the Southern California Research Institute, who set up the testing procedures for most of the NHTSA studies, says that the maximum deviation tests show positive for 50% of the population. She goes on to say that the SFST’s were not designed as indicators of driving impairment and that there are no validation studies. She also stated that the SFST’s were to determine the BAC above .10% and later .08%.

In 1994 Spurgon Cole and Ronald H. Nowaczyk conducted studies on 21 sober drivers and found that 46% of the time officers said that they were impaired and their conclusions were that the SFST’s are designed for failure.

EXPERT WITNESSES Evidence Code 777 and 801, See Rucker and Overland…California Criminal Practice, motions etc. Section 15. 39 pages of P&As on subject.

People vs. Maxey 28 Cal. App. 3rd 190 at 199 says, “you have the right to have an expert listen to their expert as well..It’s all discretionary.”

Compiled by: Felix D’Amico
Contact Felix D’Amico for more information
DRE/SFST Instructor
Consultant on DUI Drug/Alcohol Cases
350 West 5th Street , Suite 204
San Bernardino, Ca 92401
Cell: 909-499-3397 attorneys only
Office: 909-387-8344
Fax: 909-387-8383
flexdamico@aol.com

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